Our office has had many consultations from visitors from Visa Waiver Countries interested in extending their stay or changing their “visas.” Many are surprised to learn that if they did enter the US from a visa waiver country, they are not permitted to extend their stay or change their status, for that matter, with a few exceptions. Under Section 217 of the Immigration and Nationality Act (8 USC 1187), visa waiver entrants are admitted for a period of 90 days without having to apply for a visa. On the other hand, entrants taking advantage of this program waive the right to 1)to review or appeal under this Act…an immigration officer’s determination as to the admissibility of the alien at the port of entry into the United States, or 2) to contest, other than on the basis of an application for asylum, any action for removal of the alien. INA §217(b). If an individual from a visa waiver country has therefore overstayed past his/her 90 days, he or she may be removed without the right to a hearing before an immigration judge. Cases like this get very complicated because sometimes individuals from visa waiver countries enter the United States with every intention of leaving before the ninety days, but sometimes due to other circumstances, end up staying past their allotted time. There are also thorny legal situations in which visa waiver entrants wind up getting married to US citizens and wish to adjust their status. Anybody who finds themselves in this type of situation should certainly seek legal advice given the draconian consequences of being deemed a visa waiver violator.
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